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utterly corrupted and extinguished, it follows not only that all that he now has shall escheat from him, but also that he shall be incapable of inheriting any thing for the future. This may farther illustrate the distinction between forfeiture and escheat. If therefore a father be seised in fee, and the son commits treason and is attainted, and then the father dies : here the lands shall escheat to the lord ; because the son, by the corruption of his blood, is incapable to be heir, and there can be no other heir during his life (23); but nothing shall be forfeited to the king, for the son never had any interest in the lands to forfeit (k). In this case the escheat operates, and not the forfeiture; but in the following instance the forfeiture works, and not the escheat. As where a new felony is created by act of parliament, and it is provided (as is frequently the case) that it shall not extend to corruption of blood; here the lands of the felon shall not escheat to the lord, but yet the profits of them shall be forfeited to the king for a year and a day, and so long after as
the offender lives (1). The corruption There is yet a farther consequence of the corruption and blood of a person extinction of hereditary blood, which is this: that the perattainted y extended to arī son *attainted shall not only be incapable himself of inherithis posterity.
ing, or transmitting his own property by heirship, but shall [ * 254 ] also obstruct the descent of lands or tenements to his
posterity, in all cases where they are obliged to derive their title through him from any remoter ancestor. The channel which conveyed the hereditary blood from his ancestors to him, is not only exhausted for the present, but totally dammed up and rendered impervious for the future. This is a refinement upon the ancient law of feuds, which allowed that the grandson might be heir to his grandfather, though the son in the intermediate generation was guilty of felony (m). But, by the law of England, a man's blood is so universally corrupted (24) by attainder, that his sons
(K) Co. Litt. 13.
(1) 3 Inst. 47.
(m) Van Leeuwen in 2 Feud. 31.
(23) Our author, however, in page heir ; and see post, p. 255. 249, states a case in which, even un- (24) But see now the statutes of 54 der the old law, a man's eldest son Geo. III. c. 145, and of 3 & 4 Gul. might be living, and yet not he, but IV. c. 106, before referred to, and in his younger brother, be his father's part cited, in the note to p. 256.
can neither inherit to him nor to any other ancestor (n), at least on the part of their attainted father.
This corruption of blood cannot be absolutely removed but by authority of parliament. The king may excuse the public punishment of an offender; but cannot abolish the private right, which has accrued or may accrue to individuals as a consequence of the criminal's attainder. He may remit a forfeiture, in which the interest of the crown is alone concerned; but he cannot wipe away the corruption of blood; for therein a third person hath an interest, the lord who claims by escheat. If, therefore, a man hath a son, and is attainted, and afterwards pardoned by the king; this son can never inherit to his father, or father's ancestors; because his paternal blood, being once thoroughly corrupted by his father's attainder, must continue so: but if the son had been born after the pardon, he might inherit; because by the pardon the father is made a new man, and may convey new inheritable blood to his afterborn children (o).
Herein there is, however, a difference between aliens and Difference bepersons attainted. Of aliens, who could never by any pos- persons attaintsibility be heirs, the law takes no notice: and therefore we have *seen, that an alien elder brother shall not impede the [ * 255 ] descent to a natural-born younger brother. But in attainders it is otherwise: for if a man hath issue a son, and is attainted, and afterwards pardoned, and then hath issue a second son, and dies; here the corruption of blood is not removed from the eldest, and therefore he cannot be heir; neither can the youngest be heir, for he hath an elder brother living, of whom the law takes notice, as he once had a possibility of being heir ; and therefore the younger brother shall not inherit, but the land shall escheat to the lord : though, had the elder died without issue in the life of the father, the younger son born after the pardon might well have inherited, for he hath no corruption of blood (p). So, if a man hath issue two sons, and the elder in the lifetime of the father hath issue, and then is attainted and executed, and afterwards the father dies, the lands of the father shall not descend to the younger son: for the issue of the elder, which had once a possibility to inherit, shall impede the
tween aliens and
(n) Co. Litt. 391.
(0) Ibid. 392.
(P) Ibid. 8.
the old law.
descent to the younger, and the land shall escheat to the lord (9). Sir Edward Coke in this case allows (r), that if the ancestor be attainted, his sons born before the attainder may be heirs to each other; and distinguishes it from the case of the sons of an alien, because in this case the blood was inheritable when imparted to them from the father ; but he makes a doubt (upon the principles before mentioned, which are now over-ruled) (s) whether sons, born after the attainder, can inherit to each other, for they never had any inheritable blood in
them. Consequences of Upon the whole it appears, that a person attainted is attainder, under
neither allowed to retain his former estate, nor to inherit any future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feodal property, is blotted out, corrupted, and extinguished for ever : the consequence of which is, that estates thus impeded in their descent, result back and escheat to the lord.
*This corruption of blood, thus arising from feodal princorruption of the blood, by felony, ciples, but perhaps extended farther than even those prin
ciples will warrant, has been long looked upon as a pecuqualified by cer
liar hardship: because the oppressive parts of the feodal [ * 256 ] tenures being now in general abolished, it seems unreason
able to reserve one of their most inequitable consequences ; namely, that the children should not only be reduced to present poverty, (which, however severe, is sufficiently justified upon reasons of public policy,) but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And therefore, in most (if not all) of the new felonies created by parliament since the reign of Henry the eighth, it is declared, that they shall not extend to any corruption of blood : and by the statute 7 Ann. c. 21, (the operation of which is postponed by the statute 17 Geo. II. c. 39,) it is enacted, that, after the death of the late pretender, and his sons, no attainder for treason shall extend to the disinheriting any heir, nor the prejudice of any person, other than the offender himself: which pro
The effect of
, restrained and
(9) Dyer, 48.
(n) Co. Litt. 8.
(s) 1 Hal. P. C. 357.
corporation, if it
the land again,
visions have, indeed, carried the remedy farther (25) than was required by the hardship above complained of; which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor.
Before I conclude this head of escheat, I must mention In the case of a one singular instance in which lands held in fee-simple are be dissolved, the not liable to escheat to the lord, even when their owner is heirs shall have no more, and hath left no heirs to inherit them. And this and not the lord
by escheat. is the case of a corporation; for if that comes by any accident to be dissolved, the donor or his heirs shall have the land again in reversion, and not the lord by escheat; which is, perhaps, the only instance where a reversion can be expectant on a grant in fee-simple absolute. But the law, we are told (t), doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter; for the cause of the gift or grant *faileth. This is, indeed, founded upon the self-same prin- [ * 257 ] ciple as the law of escheat; the heirs of the donor being only substituted instead of the chief lord of the fee: which was formerly very frequently the case in subinfeudations, or alienations of lands by a vassal to be holden as of himself, till that practice was restrained by the statute of quia emptores, 18 Edw. I. st. 1, to which this very singular (26) instance still, in some degree, remains an exception. There is one more incapacity of taking by descent, which Pormerly pa
pists were incanot being productive of any escheat, is not strictly redu-pable of inheritcible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 & 12 Will. III. c. 4, (27) that every papist who shall not abjure the errors
of his religion by taking the oaths to government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be incapable of inheriting, or taking, by descent, as well as purchase, any real estates whatsoever; and his next of kin being a protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act. This incapacity is merely personal ; it affects himself only, and does not destroy the inheritable quality of his blood, so as to impede the descent to others of his kindred. In like manner as, even in the times of popery, one who entered into religion and became a monk professed was incapable of inheriting lands, both in our own (u) and the feodal law; eo quod desiit esse miles seculi qui factus est miles Christi : nec beneficium pertinet ad eum qui non debet gerere officium (w). But yet he was accounted only civiliter mortuus ; he did not impede the descent to others, but the next heir was entitled to his or his ancestor's estate.
These are the several deficiencies of hereditary blood, recognized by the law of England; which, so often as they happen, occasion lands to escheat to the original proprietary or lord.
(4) Co. Litt. 132.
(w) 2 Feud. 21.
c. 6, so far as to permit such Roman man Catholic religion." [Since Mr. Catholics to inherit real property, as Christian wrote, liberality has been would take the oath of allegiance pre- making further progress, and many scribed in the statute ; which is the restrictions, which Mr. Christian did same oath that is directed to be taken not consider odious, have been reby the 31 Geo. III. c. 32 ; which has moved. See stat. 10 Geo. IV. c. 7, repealed all the other odious restric- and ante, the notes to Vol. I. pp. 230, tions upon those who profess the Ro. 368.-ED.]